William Condon and Debbie Condon of Lake Hopatcong, NJ – represented by Moshe Maimon and Joseph J. Mandia of Levy Konigsberg LLP – won a month-long trial against Pecora Corporation. (1) The jury verdict awarded $6.5M in compensatory damages for Mr. Condon’s asbestos caused mesothelioma. The jury also determined that Pecora had acted in wanton and willful disregard of his rights – and further awarded $1M in punitive damages.

According to the court documents, Mr. Condon – who is currently 67 years old – installed heating and air conditioning systems, including boilers, for 11 years (1973-1984) while he was employed at Fritze Heating and Cooling of Whippany, New Jersey. Asbestos – including Pecora’s Asbestos Furnace Cement – came with the boilers he installed, and it was Mr. Condon’s exposure to these products that resulted in him developing Mesothelioma – a terminal cancer – in June of 2013. Mr. Condon testified in Court that – prior to being diagnosed with Mesothelioma – he had a “great life,” which includes his “wonderful wife” (they have been together for 50 years), and two children.

The evidence presented at trial showed that before Mr. Condon ever worked with its Asbestos Furnace Cement, Pecora was warned about the hazards of asbestos by its own asbestos suppliers. Yet, Pecora took no action to eliminate the hazards of asbestos from its product or to warn Mr. Condon (or others) about those hazards so that he could protect himself. Finally, the evidence showed that – during the time period in which Mr. Condon was working with Pecora’s Asbestos Furnace Cement – Pecora’s own President was diagnosed with Mesothelioma and filed his own law suit seeking justice for his asbestos-related cancer. Despite this, Pecora did not stop making asbestos-containing products; and only removed asbestos from its products 5 years later when its insurers would no longer cover asbestos-related risk.

Punitive damages are designed to punish a wrongdoer for particularly egregious conduct and to deter that party from future misconduct. (2) After considering the evidence, the jury awarded $1M in punitive damages against Pecora. The Honorable Ana C. Viscomi – Superior Court Judge – presided over the trial.

Levy Konigsberg LLP is a nationally recognized asbestos litigation firm specializing in the representation of mesothelioma and lung cancer victims for close to 30 years.

The campuses were closed early this month when asbestos was detected in classrooms during a modernization project. The closures left parents furious and forced more than 1,600 students to be bused to classrooms in eight different school districts across Orange County.

But the coastal Ocean View School District had a shot of good news when recent tests showed that all but three campuses were deemed not to have an unsafe level of asbestos in classrooms.

Tests showed that most of the schools had an “insignificant” level of asbestos in the air and that, even in classrooms where trace levels of asbestos were found, measurements were far below federal standards for a hazard and would not pose a risk to staff or students.

“We can say with absolute certainty that every child attending our schools is studying in the cleanest and safest classroom possible,” Supt. Gustavo Balderas said.

Asbestos is a mineral that was widely used as fireproofing in building projects until the 1970s. Though coming into contact with asbestos that hasn’t been disturbed isn’t harmful, it can become a hazard when the dust becomes airborne. Inhaling high levels of asbestos over a long period can cause cancer and other lung diseases, experts say.

When Hope View, Oak View and Lake View — the trio of elementary schools that remain closed — were built decades ago, asbestos was used as fireproofing on metal beams above the ceilings. Over time, asbestos dust began to fall from the beams and settle on classroom ceiling tiles, district records show.

The district brought in a panel of health experts last week to explain to parents the risks of asbestos exposure.

Dr. William Hughson said it’s unlikely that children will become sick as a result of asbestos exposure at school.

The Ocean View School District has given 195 applications to families interested in transferring their children to other districts since news of the potential asbestos exposure broke in September, officials said.

Officials in the Fountain Valley and Huntington Beach school districts said they have received requests for transfers.

However, Ocean View has not received confirmation that all 195 students will transfer, district spokesman Tom DeLapp said.

“I think that many people are reserving judgment until they see how we sort this out over the next few days,” DeLapp said.

They were supposed to be the watchdogs, the final word on whether asbestos was properly removed from the Kensington Heights housing complex.

Instead, they allowed cancer-causing material to escape into the air.

Two City Hall inspectors, William Manuszewski and Donald Grzebielucha, pleaded guilty Thursday to misdemeanor crimes in connection with the botched asbestos-removal effort at the vacant East Side development.

A third, Theodore Lehmann, who retired from the state Department of Labor, is expected to follow suit next week.

If that happens, it would mark an end to the government’s three-year-old prosecution of companies and individuals involved in the cleanup of Kensington Heights, a symbol of decay and decline for three decades.

“The defendants did inspections at the buildings,” Assistant U.S. Attorney Aaron J. Mango said of Manuszewski and Grzebielucha on Thursday, “and during those inspections, asbestos material was released into the air.”

The two inspectors, as part of their plea deals, stopped well short of admitting they falsified records, the allegation in the government’s 2011 indictment. They pleaded guilty instead to negligent endangerment under the Clean Air Act and admitted putting other people at risk because of their actions.

The plea deals, reached just days before they went on trial before U.S. District Richard J. Arcara, mean Manuszewski and Grzebielucha get misdemeanor, not felony, convictions.

In addition, Manuszewski will be able to keep his job with the city, according to defense lawyer Michael J. Stachowski. Grzebielucha is retired.

Stachowski said his client weighed the risks and benefits of going to trial versus taking a plea and in the end decided it was best to acknowledge that he and City Hall were partly to blame for the problems at Kensington Heights.

“He was untrained and ill-equipped,” Stachowski said of Manuszewski.

If Lehmann also pleads guilty – his lawyer, Mark S. Carney, said he intends to take a plea deal next week – it would end a criminal case that rocked the neighborhood around the housing complex.

When prosecutors announced their indictment of nine individuals and two companies connected to the asbestos-removal project, residents who live and work around the site raised questions about the potential health effects of the bungled asbestos project.

The 17-acre complex, located behind Erie County Medical Center, is also near three schools and a park frequently used by youth sports teams.

Air samples from the neighborhood later indicated that asbestos levels inside the complex’s six towers exceeded federal standards but levels outside the complex did not.

Manuszewski and Grzebielucha became the seventh and eighth defendants and the first inspectors to plead guilty in the three-year-old case. The other plea deals involved two asbestos-removal contractors and four private compliance monitors.

The grand jury indictment also charged two companies, Johnson Contracting of Buffalo and JMD Environmental Inc. of Grand Island, but those charges were dropped when the companies went out of business.

Johnson was hired to remove and dispose of the estimated 63,000 square feet of asbestos in each of the six towers, and JMD was hired to monitor their work.

Ernest Johnson, president of the asbestos-removal company, recently pleaded guilty and, as part of his plea deal, admitted his role in the bungled project. Among other things, his workers dumped asbestos down holes cut in the floors.

The initial allegations against the two city inspectors involved falsifying inspection reports from the Fillmore Avenue development.

Manuszewski, for example, was accused of using his final inspection reports to claim that asbestos work in five of the complex’s six buildings had been completed when, in fact, he knew it had not been finished.

The American philosopher William James once observed that real scientific breakthroughs are achieved by “the born geniuses” who “let themselves be worried and fascinated” by exceptions to widely held theories about how the world works. They chase down explanations, he said, until the conventional wisdom is upset.

Something similar may be happening with asbestos litigation. A manufacturer’s stubborn crusade to open up the records of thousands of claims in asbestos cases has drawn the support of big names like Ford and Aetna, as they join in the effort to uncover evidence that lawyers have been gaming the multibillion-dollar system with conflicting stories about how their clients got sick.

The evidence is all there, in hundreds of thousands of claim forms and lawsuits filed by people seeking tens of billions of dollars for asbestos-related diseases. But plaintiff lawyers have mounted a fierce effort to keep most of those records sealed, in defiance of the normal presumption that court proceedings should be open to the public.

A bankruptcy judge in Charlotte, N.C. today is scheduled to hear arguments on motions by Aetna, Ford, Volkswagen, Honeywell and other companies to make public evidence Garlock Sealing Technologies uncovered in its bankruptcy. (Legal Newsline, a publication funded by the U.S. Chamber Institute for Legal Reform, has a similar case on appeal in federal court.)

In a January ruling, U.S. Bankruptcy Judge George R. Hodges slashed the asbestos liability of Garlock, an EnPro Industries unit, by $1 billion to to $125 million, citing evidence that lawyers had withheld information about their clients’ exposure to other asbestos products in order to pry larger settlements from Garlock.

(Photo credit: jasleen_kaur)

Ford, in a filing earlier this month, said Hodge’s “findings of widespread and demonstrable misconduct by asbestos claimants” and their attorneys suggest there’s valuable evidence in the sealed files that the automaker could use to defend itself. Volkswagen, in a filing earlier this week, said “it is nearly impossible for asbestos defendants to uncover the type of misrepresentation exposed in this proceeding without judicial intervention.”

If the companies are successful, they might finally unravel a pattern of misrepresentation in asbestos litigation that has cost companies billions of dollars and driven many of them into bankruptcy. Defense lawyers say the asbestos-lawsuit business is built upon the secrecy of plaintiff records, since only the lawyers representing asbestos claimants know all the different stories they’ve told in legal proceedings against different companies. (For one egregious example, see my story from 2006.) If those stories can be pulled together into a single file – as a Texas judge a few years ago did to uncover a massive fraud involving silicosis claims – then companies might have a better shot at limiting payouts to people who have already collected for their disease.

All the companies are seeking Rule 2019 filings, so named after the provision of the federal bankruptcy code that requires lawyers to identify clients who have claims against a bankrupt company. They say they need the 2019s to match up people who filed prior asbestos claims against lists of people suing them, so they can uncover evidence those plaintiffs had told conflicting stories about how they got sick.

This is a standard defense in tort law, which requires plaintiffs to prove that a company’s products were a “substantial factor” in causing their illness. As companies that made clearly dangerous products like asbestos pipe insulation have gone bankrupt, plaintiff lawyers have targeted companies like Garlock and Ford who sold products such as gaskets and brake pads that are unlikely to have made anyone sick. To help their clients win, they advise them to remember working only with the products of the company they are suing, even if they have previously made equally exclusive claims against other companies.

Normally 2019 filings are public like any other judicial record, but asbestos lawyers in the early 2000s convinced judges to seal their filings for a variety of reasons. Chief among them: The records might reveal confidential “commercial information,” such as fee arrangements, that would hurt their business. Not only would potential clients be able to play one law firm off against another for lower fees, but the records might reveal fee-splitting arrangements that violate ethics rules in most states. Lawyers are not supposed to get fees for referring clients unless they do significant legal work on the case, but the practice is common in the industry where lawyers draw in clients with TV and Internet ads and then hand them off to firms that focus on litigation and settlement.

The lawyers also said the filings contained confidential medical information, but that argument is undermined by the fact they freely supplied the information for years before seeking to seal 2019 records, and plaintiffs must make all the same information public when they sue.

“A lot of firms simply responded” by filing public 2019 forms with medical information in the early days, said S. Todd Brown, an associate professor at State University of New York Buffalo Law School and expert on asbestos bankruptcy trusts. “It wasn’t until later, after the litigation really got into full swing, that the current approach (of sealing records) became more common. Now everything is filed under seal and you have to jump through a bunch of hoops to get access to it.”

The plaintiff lawyers had an ally in Judge Judith Fitzgerald, since retired to private practice, who oversaw a number of high-profile bankruptcies including Pittsburgh Corning, Armstrong World Industries, Federal-Mogul and Combustion Engineering. She allowed the lawyers to submit their 2019 filings on CDs, to be held by the court and released only on a judge’s order.

Not many people asked for the records until Garlock was driven into bankruptcy in 2010 by the escalating demands of asbestos plaintiff lawyers. The company had been settling asbestos claims for small amounts for years because its products contained a type of asbestos believed to be 1/1000th as dangerous as the long-fiber amphibole asbestos in insulation, and it was sealed in plastic. A plaintiff who took such a case to trial would have a hard time establishing the legal level of proof to win any damages. The Sixth Circuit Court of Appeals threw out a $500,000 jury verdict against Garlock on this basis in 2011, saying that to blame a pipefitter’s mesothelioma on Garlock gaskets would “be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean’s volume.”

As solvent defendants went bankrupt, however, plaintiff lawyers started targeting companies like Garlock and demanding far more money to settle claims than they had before. Garlock’s attorneys figured their best defense might be to obtain evidence of other exposures, which would be contained in the 2019 filings and related paperwork filed with trusts bankrupt companies established to pay asbestos claims. But they hit a brick wall.

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Some £150m in compensation is expected to be paid to former Harland and Wolff workers who contracted asbestos-related diseases while working at the shipyard.

More than 2,000 people have been already been paid compensation.

Asbestos was a widely-used insulation material in shipbuilding until the 1970s.

Many workers contracted asbestos-related diseases after they were exposed to its fibres.

The legacy of the once government-owned Belfast shipyard is still causing misery for thousands of former workers.

To date more than 2,000 former workers, relatives and contractors who worked in the yard before it was privatised in 1989 have successfully claimed for compensation at a cost of £60m. That is an average of £30,000 each.

Billy Graham from east Belfast, who worked in ship repair in the yard for 20 years, is one of the former workers who was awarded compensation.

Range of diseases

He said: “We were told nothing about asbestosis. When you were working with old boilers, there was an asbestos ring around them, and we just pulled them off and the dust was flying everywhere.

Eddie Harvey’s wife died aged 65 after inhaling asbestos fibres from his work clothes

“It’s a big shock when you are told you have a mild form of asbestosis. It does not get any better. It affects you that you can’t walk. You can’t do certain things. You can’t play with the grandkids the way you used to. You are just beat.”

The former employees are suffering from a range of diseases including asbestosis, mesothelioma, pleural plaques and lung cancer.

It is not just shipyard workers who were affected. In some cases there was “secondary contamination” – where people close to the those working in the yard contracted an asbestos-related disease.

East Belfast man Eddie Harvey worked in the yard for 20 years. His wife Margaret died in December 2008, aged 65, from fibres she breathed in while washing his work clothes.

“Start Quote

I lost my wife to it, through washing my clothes. She couldn’t breathe in the end. She was in and out of hospital for three years and tried to fight it. She went from being 12 stone to a frail old woman of maybe five stone.”

End QuoteEddie HarveyFormer Harland and Wolff worker

‘Couldn’t breathe’

Mr Harvey urged anyone who has been affected by asbestos in the shipyard to claim against the Stormont Executive.

“I lost my wife to it, through washing my clothes. She couldn’t breathe in the end. She was in and out of hospital for three years and tried to fight it. She went from being 12 stone to a frail old woman of maybe five stone.

“Anyone who has it, make no mistake, they should go and claim because the government says the money is there.

“Don’t be afraid to. The government is not going to give you money if you are not entitled to it.”

The Department of Enterprise (DETI) at Stormont estimates it will pay out another £89m for claims by people who have yet to be diagnosed with asbestos-related diseases. It expects the claims to continue up until 2040 – some 50 years after the government sold the shipyard into private ownership.

After the privatisation DETI retained control of Harland and Wolff PLC, which includes the liabilities for asbestos-related diseases contracted by former workers.